United States v. Scott

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 18, 2002
• Docket: 01-31266
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31266 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CEDRICK SCOTT,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Middle District of Louisiana USDC No. 99-CR-5-ALL-B -------------------- June 18, 2002

Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Cedrick Scott appeals the sentence imposed following his

guilty-plea conviction for possession of a firearm by a convicted

felon, possession with intent to distribute cocaine base, and

carrying a firearm during and in relation to a drug-trafficking

offense. Scott argues that the district court erred in denying

him a two-point reduction in his offense level for acceptance of

responsibility. Although Scott pleaded guilty, in his interview

with the probation officer, he denied that the gun and drugs

belonged to him, did not accept responsibility for his actions,

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-31266 -2-

and did not express any remorse. Therefore, the district court

did not err in denying him a reduction for acceptance of

responsibility. See United States v. Flucas, 99 F.3d 177, 180

(5th Cir. 1996); United States v. Vital, 68 F.3d 114, 121 (5th

Cir. 1995).

Scott argues that 18 U.S.C. § 924(e), under which his

sentence was enhanced based on his prior convictions, violates

the Fifth and Sixth Amendments as construed in Apprendi v. New

Jersey, 530 U.S. 466 (2000). Because he did not raise this issue

in the district court, review is limited to plain error.

See United States v. Dupre, 117 F.3d 810, 817 (5th Cir. 1997).

Scott acknowledges that his argument is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224 (1998), but seeks to

preserve it for possible Supreme Court review. Apprendi did not

overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90.

This court must follow Almendarez-Torres “unless and until the

Supreme Court itself determines to overrule it.” United States

v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert. denied, 531

U.S. 1202 (2001)(internal quotation marks and citation omitted).

AFFIRMED.